Today’s verdict on the Forcillo case has undoubtedly raised several questions that the media may not be able to answer clearly.

Here’s my perspective:

  1. The jury had a reasonable doubt about whether the force used by the officer in firing the first three shots, some or all of which killed Sammy Yatim, was unlawful.  Police officers are authorized under s.25 of the Criminal Code to use force that’s intended to cause death or grievous bodily harm to a person to be arrested subject to several limitations. The one that’s most relevant here is if the officer believes on reasonable grounds that it’s necessary to protect the officer or others. This is a specific defence, so the Crown would have to negative it to get a conviction on murder or manslaughter;
  2. Self-defence was also raised on the trial but I don’t personally believe it was as strong a position as the “justified force” referred to above;
  3. The conviction for attempted murder was based on the additional 6 shots the officer fired at Mr. Yatim after he was on the ground.  Mr. Yatim may well still have been alive at the time. The jury must’ve found that the officer intended to kill him at the time and that there were no reasonable grounds to justify the force he used.  The fact that the other shots actually did kill him didn’t prevent this finding as it was based on the act of firing the shots, the intent to kill and the lack of a valid defence;
  4. Peter Brauti, the defence counsel, has indicated he’ll seek a stay of proceedings on the basis that the officer was only doing what he was trained to do and it would be an abuse of process to permit a conviction to be registered. This is a novel argument, particularly as a stay of proceedings is reserved only for the clearest of cases, but the judge will have to rule on it in the future;
  5. Assuming the judge rejects the application for a stay, there’s a minimum jail sentence of 4 years for attempt murder when a firearm is used and a maximum sentence of life imprisonment. The judge won’t have the discretion to impose anything less, unless the defence could persuade him that the section providing the minimum is unconstitutional.  Several years ago, the Supreme Court of Canada ruled that a judge does not have the option of granting someone a “constitutional exemption” and thereby give him or her a sentence that’s less than the minimum;
  6. The fact that the jury was out for several days indicates that there were some who took a different view than others until they arrived at something they could all agree to. We’ll have no way of knowing how many voted which way and who changed their views before the final decision as their deliberations have to be kept secret;
  7. The defence have indicated they’re considering appealing the verdict. They’d have to satisfy an appellate court that there was a significant error in law, whether in ruling evidence admissible or inadmissible, in the trial judge’s instruction to the jury  or on some other basis. The fact that the jury acquitted the officer on the most serious charge could be taken to indicate, at least in terms of any defence argument, that they had a good enough basis on what was introduced at trial, to understand the issues and decide the case fairly.  The Crown also has the right to appeal against the acquittal.

While there’s a great deal more to think about as a result of this case as, for example, what kind of police conduct COULD result in a conviction for murder or manslaughter, what training should they get, how should a jury ever evaluate the officer’s belief in what he needed to do as distinct from what was actually and reasonably necessary and much more but that might be the subject for a future post.

If you have any questions, please email contact@jeffmanishen.com.

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